Are personal details in asylum claims kept confidential? Protecting the privacy of asylum seekers and safeguarding confidentiality

Why is confidentiality so important in asylum claims?

Asylum seekers often find themselves in a vulnerable position, sharing sensitive and confidential information with the Home Office to support their asylum claims. Their cooperation is required to substantiate their claim and they rely on the understanding that this information will remain confidential and, most crucially, will not be shared with the authorities of their country of nationality.

Sensitive information related to the claim, and the existence of the claim itself, can have dire consequences both for the applicants and their families if it falls into the wrong hands. Therefore, the right to privacy and confidentiality is of paramount importance for asylum seekers, especially if the claim is based on a fear of persecution by the authorities in their country of nationality. Put simply, safeguarding confidentiality in asylum claims is vital to the applicants’ and their family’s safety.

This blog explores the mechanisms in place to safeguard asylum seekers' confidential information, focusing on two key questions: (1) How does the Home Office ensure the protection of asylum applicants' confidentiality? and (2) How do Tribunals and higher courts balance the interests of open justice with the need to secure an asylum seeker’s anonymity?

The Home Office’s obligations

The Home Office cannot share information about the existence of an asylum claim with the asylum applicant’s alleged country of persecution. Paragraph 339IA of the UK Immigration Rules provides that when examining individual applications for asylum, information provided in support of an application and the very fact that the application has been made shall not be disclosed to the alleged actor of persecution of the application, regardless of whether the applicant's country of origin is considered a “safe country of origin”  by the authorities.

The Rules go a step further, stating that information shall not be obtained from the alleged country of persecution that would result in their being directly informed that an asylum application has been made by the applicant, as this would jeopardise the physical integrity of the applicant and their dependants, and the liberty and security of family members still living in the country of origin.

The Home Office further reinforces these rules through its guidance on Disclosure and confidentiality of information in asylum claims, which ought to be followed by caseworkers in all cases. This makes clear, for example, that even where an asylum seeker’s country of nationality approaches the UK authorities with criminal allegations concerning the asylum seeker, the Home Office cannot confirm or deny whether an asylum claim has been made by that individual.

Confidentiality is not completely guaranteed. Some information may be shared with certain public bodies in the UK, such as the NHS, local authorities and police. Information can also be provided to certain international organisations concerned with the welfare of asylum seekers, such as the United Nations High Commissioner for Refugees or the Red Cross, but only where the organisations are already aware of the claim.

Asylum seekers are made aware of these safeguards when they make their asylum claims. A “confidentiality statement” is read to each applicant in their initial asylum registration interview, to inform them that the Home Office will not inform their home country that they have claimed asylum or their reasons for doing so but may share certain information with UK government departments, or agencies such as the NHS, local authorities and particular international organisations.

Regrettably, while certainly not the norm, there have been instances where the Home Office failed to adhere to its own guidance. Not long ago, we witnessed the shocking incident of a consulate official from a client’s country of nationality attending a meeting with him at the Home Office, at the latter’s request. In 2018, a disconcerting case was reported, wherein the Home Office shared confidential information with the state authorities in an asylum seeker's country of origin. These disclosures unsurprisingly gave rise to a serious risk that the authorities in the asylum seeker’s home country would be alerted to his claim, preventing future return and threatening to place his family in danger. The Home Office settled the claim for £15,500 in damages. While this asylum seeker was granted asylum in the UK, the incident emphasises the urgent need for the Home Office to implement the strongest possible safeguards to preserve asylum seekers' confidentiality and prevent disclosure of their asylum status to potential persecutors, considering the life-threatening risks involved.

What can Tribunals and higher courts do to balance the interests of open justice with securing an appellant’s anonymity?

Asylum seekers’ information is not limited to the realms of the Home Office. If an asylum claim in the UK is refused, applicants are ordinarily permitted to appeal to the First-tier Tribunal, and if this fails, to the Upper Tribunal. This appeal is usually heard in an open appeal hearing (meaning that members of the public and journalists can attend), where all matters are discussed in open court including the individual’s basis for their asylum claim. First-tier Tribunal judgments are not published, but those of the Upper Tier, Court of Appeal and Supreme Court cases are routinely made public. While transparency in the judicial process is essential for accountability and public trust, the safety of an asylum seeker hinges on the protection of their identity and sensitive information. The former principle means that the Tribunals’ default position is that all immigration appeal hearings will be heard in open court. However, the potentially competing interests are balanced using the following measures:

1. Anonymising Appellants’ names: The names of Appellants in asylum appeals are automatically anonymised using initials at the appoint the appeal is generated, so they should not appear in listings or communication from the court.
    
2. Anonymity Orders: Anonymity orders can be made by tribunals and courts to prohibit the disclosure of documents or information relating to the proceedings or any matter that is likely to lead to the identification of persons the Tribunal considers should not be identified. An anonymity order will only be made where a judge considers this non-disclosure necessary to secure the proper administration of justice and to protect the interests of the relevant individuals. The Supreme Court in the case of Kambadzi v SSHD [2011] UKSC 23, emphasised that even in asylum appeals anonymisation must be justified on a case-by-case basis and it is no longer the case that all asylum seekers are entitled to anonymity. Whether or not the information should be disclosed, requires a balancing exercise between the competing interests of an individual’s rights, against the need for open justice. The Upper Tribunal's anonymity guidance states that an order will be made if it is necessary to protect human rights i.e. the private life, liberty or bodily integrity of the applicant or a witness referred to in proceedings. Particular consideration is given where details of witnesses or relatives abroad form part of the protection case. If an anonymity order is granted, the appellant will be identified by initial (and the country) and reporting restrictions will apply, to prevent certain individuals from being identified.
    
3. Restricting attendance at hearings: Journalists and members of the public may attend immigration hearings held in public (listings are published online). If an anonymity order is granted, names do not appear on case lists, and the judge decides who can attend the hearing. However, an anonymity direction will not automatically result in a private (also known as ‘in camera’) hearing. Parties can apply for a hearing to be heard in private, which will turn on factors like the existence of sensitive and medical issues to be discussed, and risk to the Appellant(s) and third parties.

Additional considerations where an extradition request is made concerning an asylum seeker

It is important to note that complications can arise where an asylum seeker’s extradition is sought by their country of nationality. One clear point of tension in relation to confidentiality arises where it comes to light in the course of extradition proceedings that an asylum claim has been made. Further, since the government of the country of nationality is party to those proceedings, they will have sight of the evidence submitted in defence of the request; some of which may overlap with that provided in a parallel asylum claim. Confidentiality will therefore be an important consideration in cases involving parallel extradition and asylum proceedings.

Further information

If you have any queries in relation to the above or any other asylum or international protection matter, please contact a member of our immigration team.

About the authors

Lavanya is a trainee solicitor at Kingsley Napley and is currently in her second seat in the Immigration team. 

Oliver is a senior associate in the Immigration Team and International Protection Group. He has been practising immigration law since 2012, with a particular focus on asylum, human rights, detention and deportation matters. He has extensive experience of representing clients in their appeals from the First-tier Tribunal (IAC) up to the Court of Appeal and has brought a range of judicial review challenges against Home Office decisions all the way up to the Supreme Court.